General Terms and Conditions

General Terms and Conditions of Biogastechnik Süd GmbH (as at 1 May 2015)

1. Scope

These terms and conditions apply to all contracts concluded between the customer and us relating to the supply of plant, individual components, equipment and accessories, as well as to the supply of other items, and to contracts for installation, maintenance and repair services. They also apply to all future business relationships, even if they are not expressly agreed. Any terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions shall not apply, even if we do not expressly object to them, but only if we have expressly agreed to their validity in writing.

2. Offers, conclusion of contracts, documents provided

We may accept an order from the customer within two weeks by issuing an order confirmation or by actually delivering the goods or rendering the service. Our quotations are subject to change and non-binding, unless we have designated them as binding.
Brochures or the technical documentation attached to our quotation or order confirmation, such as illustrations, drawings, design proposals, etc., are only approximate in nature, unless individual details have been expressly guaranteed or designated as binding. We reserve the right to make technical improvements to the design or manufacturing method.
We reserve ownership and copyright in all documents provided to the customer in connection with the placing of the order, such as cost estimates, drawings, etc. These documents must not be made available to third parties unless we give the customer our express written consent to do so. Should we not accept the customer’s order, these documents must be returned to us immediately.

3. Prices

Prices quoted are net, plus VAT at the rate applicable at the time of delivery, and apply to the delivery of unpackaged goods ex works in Isny. Transport costs are charged separately as an additional service. Any packaging required will be charged for and will not be taken back, unless we have agreed otherwise in writing.
Prices quoted carriage paid are subject to unimpeded traffic conditions.
If there is a period of more than eight weeks between the conclusion of the contract and the agreed delivery date, the client shall pay the list price set by us and generally applicable at the time of delivery for the goods.
For repeat orders, the prices of the initial transaction shall apply only if expressly agreed.

4. Terms of payment

Payments are due immediately and without deduction upon completion of our deliveries or services and the issuing of an invoice, unless otherwise agreed. Invoices not settled within 5 working days of the due date shall be deemed to be in arrears without the need for a reminder. Interest on arrears shall be charged at a rate of 9% above the respective base rate per annum. We reserve the right to claim higher damages arising from the delay. We are entitled to apply payments first towards older debts. If costs and interest have already been incurred, we are entitled to apply payments first towards the costs, then towards the interest and finally towards the principal claim.
The customer is only entitled to set off warranty claims or other counter-claims if these have been legally established, are undisputed or have been acknowledged by us.
The customer may only exercise a right of retention if their counter-claim arises from the same contract. The client may not assign their claims against us.
A payment shall only be deemed to have been made once we are able to dispose of the amount. In the case of payment by cheque or bill of exchange, the payment shall only be deemed to have been made once the cheque or bill of exchange has been honoured.
We accept no liability for the receipt of payments made by the purchaser which are not made directly to Biogastechnik Süd GmbH or to a person expressly authorised by us.

5. Delivery and performance period; delay in performance

Delivery dates or deadlines are non-binding unless they have been agreed as binding.
We shall only be liable for delays in delivery if the delay is due to an intentional or grossly negligent breach of contract for which we are responsible. Our liability is limited to foreseeable, typically occurring damage, provided that the delay in performance is not due to an intentional breach of contract for which we are responsible. In the event that a delay in delivery is due to a culpable breach of a material contractual obligation, we shall be liable in accordance with the statutory provisions, provided that, even in this case, liability for damages is limited to the foreseeable, typically occurring damage. We accept no liability for consequential damages arising from the breakdown of the plant.
The customer is obliged to accept our delivery or service no later than 2 weeks after receiving written notification of our readiness to perform. If the customer is in default of acceptance or culpably breaches other obligations to cooperate, we shall be entitled to claim compensation for the loss incurred by us in this respect, including any additional expenses. We reserve the right to make further claims. Provided the above conditions are met, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time the customer is in default of acceptance or payment.

6. Transfer of risk - dispatch

Delivery shall be ex-works from our factory in Isny. Should the customer request that the goods be transported to a destination specified by them, they shall bear the costs and the risk of transport. The dispatch of the goods shall also be at the customer’s risk in cases where, exceptionally, we provide carriage paid delivery. Prior to dispatch of the goods, the customer shall bear the risk of destruction, loss of possession or damage to the goods, where neither party is at fault, if, at the customer’s request, the goods ready for dispatch are to be delivered at a later date than originally scheduled. The risk shall then pass to the client upon expiry of the scheduled dispatch date. Insurance shall only be taken out at the client’s request and at the client’s expense.

7. Warranty and general liability: Contracts with businesses

In the case of deliveries, the customer shall only be entitled to make a claim for defects if the customer has complied with their obligation to inspect the goods and give notice of defects in accordance with section 377 of the German Commercial Code (HGB).
In the event of justified complaints regarding defects, we are entitled to remedy the defect within a reasonable period. Only if rectification has failed or is refused by us may the customer, at their discretion, demand a reduction in the purchase price or contract price, withdraw from the contract, or claim damages in accordance with the following conditions.
The customer’s warranty claims shall become time-barred after 1 year. The limitation period shall commence
- in the case of pure supply contracts, upon delivery of the goods to the customer,
- in the case of contracts for work and services or contracts for work and materials, upon acceptance.
  A system installed and delivered by us shall be deemed to have been accepted two weeks after it has been commissioned. Upon acceptance, our liability for obvious defects shall cease, unless the customer has expressly asserted such defects in detail in writing in the acceptance report.
Notwithstanding the following limitations of liability, we shall be liable in accordance with statutory provisions for damage to life, bodily injury and damage to health resulting from a grossly negligent or intentional breach of duty on our part, on the part of our legal representatives or vicarious agents, as well as for damage covered by liability under the Product Liability Act.
We shall only be liable for other damages if they result from intentional or grossly negligent breaches of contract or from fraudulent misrepresentation on the part of us, our legal representatives or our vicarious agents. In such cases, liability for damages is limited to the foreseeable, typically occurring damage, provided that we, our legal representatives or our vicarious agents have not acted with intent or gross negligence. We accept no liability for third-party, secondary or consequential damages.
We are also liable for damage caused by a breach through simple negligence of those contractual obligations which are essential for the proper performance of the contract and on the fulfilment of which the buyer regularly relies and is entitled to rely. However, we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. In this regard, we accept no liability for third-party, incidental or consequential damages.
Any further liability is excluded regardless of the legal nature of the claim asserted; this applies in particular to claims in tort or claims for reimbursement of futile expenditure in lieu of performance; this does not affect our liability in accordance with Clause VII. 4.

8. Warranty and general liability: Contracts with consumers

Where there is a defect in the goods for which we are responsible, we are obliged to provide a replacement or carry out repairs, to the exclusion of the buyer’s rights to withdraw from the contract or to reduce the purchase price, unless we are entitled to refuse to supply replacement goods or carry out rectification under the relevant statutory provisions. The buyer must grant us a reasonable period of time to supply replacement goods or carry out rectification.
The customer’s warranty claims shall become time-barred after 1 year. The limitation period shall commence
- in the case of pure supply contracts, upon delivery of the goods to the customer,
- and, in the case of contracts for work and services or contracts for work and materials, upon acceptance.
  A system installed and delivered by us shall be deemed to have been accepted two weeks after it has been commissioned. Upon acceptance, our liability for obvious defects shall cease, unless the customer has expressly asserted such defects in detail in writing in the acceptance report.
Notwithstanding the following limitations of liability, we shall be liable in accordance with statutory provisions for damage to life, bodily injury and damage to health resulting from a grossly negligent or intentional breach of duty on our part, on the part of our legal representatives or vicarious agents, as well as for damage covered by liability under the Product Liability Act.
We shall only be liable for other damages if they result from intentional or grossly negligent breaches of contract or from fraudulent misrepresentation on the part of us, our legal representatives or our vicarious agents. In such cases, liability for damages is limited to the foreseeable, typically occurring damage, provided that we, our legal representatives or our vicarious agents have not acted with intent or gross negligence. We accept no liability for third-party, secondary or consequential damages.
We shall also be liable for losses caused by our breach, through simple negligence, of such contractual obligations which are essential to the proper performance of the contract and on whose fulfilment the buyer regularly relies and is entitled to rely. However, we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. In this regard, we accept no liability for third-party, incidental or consequential damages.
Any further liability is excluded regardless of the legal nature of the claim asserted; this applies in particular to tortious claims or claims for reimbursement of futile expenditure in lieu of performance; this does not affect our liability under Clause VIII.
Where our liability is excluded or limited, this shall also apply to the personal liability of our employees, staff, representatives and vicarious agents.

9. Consequences of the buyer’s failure to fulfil their obligations

If the buyer fails to fulfil their contractual obligation to take delivery of the goods and is in default of acceptance, we shall be entitled to withdraw from the contract and to claim an amount equivalent to 25 per cent of the purchase price as lump-sum compensation.

10. Retention of title

Until all claims to which we are currently or in future entitled against the customer have been settled, the goods delivered (goods subject to retention of title) shall remain our property under an extended retention of title. The customer is obliged to treat the goods subject to retention of title with due care for as long as ownership has not yet passed to them. In particular, they are obliged to insure these adequately at their own expense against theft, fire and water damage at replacement value. Should maintenance and inspection work be required, the customer must carry this out in good time at their own expense.
In the event of the buyer acting in breach of the contract, e.g. in the event of late payment, we shall be entitled, after first setting a reasonable period of grace, to take back the goods subject to retention of title. If we take back the goods subject to retention of title, this shall constitute a withdrawal from the contract. If we seize the goods subject to retention of title, this shall constitute a withdrawal from the contract. We are entitled to realise the goods subject to retention of title following their repossession. After deducting a reasonable amount to cover the costs of realisation, the proceeds of realisation shall be set off against the amounts owed by the purchaser.
The customer is entitled to sell and/or use the goods subject to retention of title in the ordinary course of business, provided they are not in default of payment. Pledging or transfer by way of security is not permitted. The buyer hereby assigns to us, by way of security, in full, all claims arising from the resale or any other legal basis in respect of the goods subject to retention of title; we accept such assignment. We revocably authorise the customer to collect the claims assigned to us on their own account and in their own name. This authorisation to collect may be revoked at any time if the buyer fails to meet their payment obligations properly.
Any processing or transformation of the goods subject to retention of title by the customer shall in all cases be carried out on our behalf. If the goods subject to retention of title are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the proportion of the value of the goods subject to retention of title to the other processed items at the time of processing. The same provisions shall apply to the new item created by processing as to the goods subject to retention of title. In the event of the goods subject to retention of title being inseparably blended with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other blended items at the time of blending. To secure our claims against the Customer, the Customer hereby assigns to us any claims arising against a third party as a result of the combination of the goods subject to retention of title with immovable property; we hereby accept this assignment.
In the event of any third-party claims to the goods subject to retention of title, in particular seizures, the buyer shall draw attention to our ownership and notify us immediately so that we may enforce our ownership rights. Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of legal proceedings in accordance with Section 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the loss incurred by us.
We are obliged to release the security to which we are entitled to the extent that the realisable value of our security exceeds the claims to be secured by more than 20 per cent; in doing so, we shall be entitled to select the security to be released.

11. Severability clause

Should any provision of these terms and conditions be or become invalid, this shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by the relevant statutory provision.

12. Place of performance, place of jurisdiction, applicable law

The place of performance and the place of jurisdiction for deliveries and payments (including claims relating to cheques and bills of exchange), as well as for all disputes arising between us and the buyer in connection with the contracts concluded between us, shall be our registered office. We are, however, entitled to bring legal proceedings against the customer at their place of residence and/or business.
This contract and all legal relationships between the parties are governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
The language of the contract is German.

The Terms and Conditions are also available as a PDF file at AGBs-BTS_2022-04-30_DE.